Appeal of JERRY PIERRE, SR., on behalf of his son JERRY PIERRE, JR., from action of the Board of Education of the Sewanhaka Central High School District regarding residency.

Decision No. 17,270

(December 5, 2017)

Bernadette Gallagher-Gaffney, Esq., attorney for respondent

ELIA, Commissioner.--Petitioner appeals a determination of the Board of Education of the Sewanhaka Central High School District (“respondent”) that his son, Jerry Pierre, Jr., is not a district resident.  The appeal must be dismissed.

According to the record, in July 2007, petitioner, Mashauna Vailes (Jerry Jr.’s mother), Jerry Jr. and his sister, Keilanya, resided in Elmont, NY.  Jerry Jr. was enrolled in school in respondent’s district in 2007.[1] In June 2012, Jerry Jr.’s mother left the in-district address and relocated to Queens.  It is not disputed that Ms. Vailes resides in Queens (“Queens address”).

Respondent’s attendance supervisor initially became aware that petitioner’s children no longer resided in the district based on a statement made by Keilanya to a guidance counselor.  Respondent commenced a residency investigation and hired an investigator who conducted surveillance at the in-district address on three weekday mornings between April and June 2013.  The investigator also conducted surveillance at the Queens address, where Jerry Jr.’s mother resides, on five weekday mornings between April and May 2013.  The in-district surveillance revealed two weekday mornings where Jerry Jr. was dropped off at the in-district address by his mother.  Surveillance at the Queens address revealed that, during the weekday mornings of May 8, 10 and 14, Jerry Jr. was seen leaving his mother’s address and was dropped off at the in-district address.

Thereafter, petitioner was notified of the determination that Jerry Jr., was not a district resident and, on June 4, 2013, a residency hearing was held.  Both of Jerry Jr.s’ parents testified during the hearing regarding his residency.

By letter dated June 26, 2013, respondent’s administrative review officer notified petitioner of her determination that Jerry Jr. was not a district resident and would be excluded from school.  This appeal ensued.  Petitioner’s request for interim relief was denied.

Petitioner asserts that his son is a district resident, entitled to attend school in respondent’s district.  Respondent contends that the appeal is untimely and lacks the notice required under Commissioner’s regulations.  Respondent also asserts that its determination was rational and is supported by the record.

The appeal must be dismissed.  The record indicates that respondent’s residency determination was issued on June 26, 2013 and the petition was timely served on July 31, 2013.  However, by letter dated August 5, 2013, the petition was returned by my Office of Counsel because it did not comply with the Commissioner’s regulations in that it lacked the notice required by §§275.11 and 276.1 of the regulations and was not properly verified. Petitioner was notified that, if a corrected petition was served and filed within two weeks from the date of such letter, the appeal would be deemed to have been initiated on the date the original petition was served upon respondent.

The petition must be dismissed due to petitioner’s failure to serve a notice of petition on respondent.  The notice of petition secures jurisdiction over the intended respondent and alerts a party that he or she is required to appear in the appeal and answer the allegations contained in the petition (8 NYCRR §275.11[a]; Appeal of Cronin, 56 Ed Dept Rep, Decision No. 17,102).  A petition that does not contain the language required by §275.11 is fatally defective, and does not secure jurisdiction over the intended respondent (Appeal of Cronin, 56 Ed Dept Rep, Decision No. 17,102).  As noted, the petition initially filed with my Office of Counsel on August 2 did not contain a notice of petition, and my Office of Counsel notified petitioner of this error when it returned the petition.  Despite this, petitioner did not serve a notice of petition on respondent and submits no reply or other evidence regarding such lack of notice.  The failure to serve a notice of petition upon respondent, therefore, warrants dismissal of the petition. 

Further, section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  When a petition is not properly verified, the appeal must be dismissed (Appeal of D.P., 46 Ed Dept Rep 516, Decision No. 15,580; Appeal of C.S., 46 id. 260, Decision 15,501).  While both petitions filed with my Office of Counsel included affidavits “of verification” from petitioner’s mother and two brothers, neither included a verification from petitioner, as required by 8 NYCRR §275.5.  Therefore, the appeal must also be dismissed for lack of proper verification.

In light of the above disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

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